Opinion
No. CV 06-500 30 16 S
June 4, 2007
MEMORANDUM OF DECISION RE Motion to Strike (Motion #117.00)
FACTS
This action arises out of a home improvement contract in which the plaintiff, Parvin Group, LLC, agreed to construct a new frame addition to the existing dwelling on the property of the defendants, Kevin and Roisin Barry, at 145 Queens Road in Fairfield. On June 5, 2006, the plaintiff filed a five-count complaint sounding in breach of contract, breach of the covenant of good faith and fair dealing, negligence, unjust enrichment, and foreclosure of a mechanic's lien. In response to a request to revise, the plaintiff filed a revised complaint on March 6, 2007, attaching the contract as an exhibit. The contract does not contain a notice of cancellation as required by General Statutes § 20-429(a). The plaintiff alleges that, after it received a number of periodic payments pursuant to the contract and had substantially completed work, the defendants ordered it off the property and refused to pay the balance due under the contract.
Section 20-429(a) provides in relevant part: " (a) No home improvement contract shall be valid or enforceable against an owner unless it . . . (6) contains a notice of the owner's cancellation rights in accordance with [General Statutes § 42-135a] . . ."
On June 30, 2006, the plaintiff filed an application to discharge a mechanic's lien on the subject property, which the court, Radcliffe, J., granted as to Kevin Barry but denied as to Roisin Barry. On April 13, 2007, the defendants filed a motion to strike all five counts of the complaint on the ground that the plaintiff, having failed to comply with the Home Improvement Act, General Statutes § 20-418 et seq., cannot enforce the contract nor recover for the value of the work performed. The plaintiff filed an objection on May 24, 2007.
DISCUSSION
The defendants argue that violation of § 20-429(a)(6) precludes recovery by a contractor either pursuant to the contract or in quantum meruit. The defendants maintain that, since all of the plaintiff's claims are premised on the contract or in quantum meruit, none of the claims are legally sufficient and must be stricken.
The plaintiff counters that the contract is enforceable because the defendants are equitably estopped from disputing its validity, since they had actual notice of their right to cancel before the contact was signed, and since Kevin Barry signed a cancellation notice before the plaintiff began working. The plaintiff next argues that the defendants waived their right to repudiate the contract for failure to include the cancellation form because Kevin Barry knew of the cancellation form beforehand and signed it several days after the contract was signed but before the plaintiff began work. Additionally, the plaintiff contends that the defendants signed the contract in bad faith, intentionally omitting the cancellation notice from the contract and inducing the plaintiff to sign it without an attorney present, which would permit a contractor to recover on a contract or in quantum meruit despite noncompliance with the Home Improvement Act.
The plain language of § 20-429(a) invalidates any home improvement contract in which the cancellation notice required by General Statutes § 42-135a is not included. Moreover, while a plaintiff may be able to recover in quantum meruit for certain violations of the act; see Economos v. Liljedahl Bros., Inc., 279 Conn. 300, 310, 901 A.2d 1198 (2006) ("[s]ubsection (f) of § 20-429 allows quantum meruit recovery in certain cases of partial noncompliance with subsection (a)"); subsection (f) only extends such relief to "contractor[s] who ha[ve] complied with subdivisions (1), (2), (6), and (8) of subsection (a) of this section." General Statutes § 20-429(f). The defendants contend that the cancellation notice required by § 20-429(a)(6) was not included in the contract and, therefore, the plaintiff is barred from recovery.
Ordinarily, noncompliance with the Home Improvement Act should be pleaded as a special defense by a homeowner being sued on a home improvement contract. See Sidney v. DeVries, 18 Conn.App. 581, 586-87, 559 A.2d 1145 (1989), aff'd, 215 Conn. 350, 575 A.2d 228 (1990); K Builders Remodelers, Inc. v. Curioso, Superior Court, judicial district of New London, Docket No. 559213 (April 18, 2002, Martin, J.) (denying motion to strike based on noncompliance with Home Improvement Act because it was not clear from complaint whether the act applied). Nevertheless, "a motion to strike may be proper where the allegations of the complaint show dispositively that a case is governed by the [Home Improvement] Act and that the Act's provisions have not been met . . ." Mill Wan Mechanical Contractors v. Elliott, Superior Court, judicial district of Hartford, Docket No. 375971 (January 30, 1992, Hennessey J.), citing Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 572 A.2d 149 (1990). See also Chiulli v. Zola, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0194728 (August 4, 2004, Lewis, J.T.R.) (granting defendant homeowner's motion to strike because complaint had alleged contract was oral, thus not complying with the Home Improvement Act), rev'd on other grounds, 97 Conn.App. 699, 905 A.2d 1236 (2006); Skovron v. Belgrail Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 900108653 (May 8, 1991, Ryan, J.) (17 Conn. L. Rptr. 22) (same; additionally noting that allegations that contract was to provide "landscaping material and services" to defendant homeowner made it clear that contract fell within Home Improvement Act).
The present case does not present a complaint alleging only "a contract" or "construction work"; it is clear that "construct[ing] a new frame addition to the [defendants'] existing dwelling," among the other work detailed in the complaint and incorporated contract, involves "the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property" constituting "home improvement" under the act. General Statutes § 20-419. Moreover, the contract incorporated into the complaint does not contain the cancellation notice required by § 20-429(a), and contains an integration clause providing that the contract states the entire agreement between the parties. Therefore, it is apparent from the complaint that the Home Improvement Act applies and that the plaintiff has not complied with one of the crucial provisions necessary for recovery either on the contract or in quasi-contract, which form the basis for all five of the plaintiff's claims. While the possible existence of bad faith or waiver on the defendants' part might avail the plaintiff of the right to pursue its contract or quasi-contract claims, the complaint is devoid of any allegations that might give rise to claims of bad faith, waiver or estoppel "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The defendants' motion to strike is therefore granted in its entirety.
The plaintiff argues that the second count asserting breach of the implied covenant of good.faith and fair dealing, is sufficient to give rise to a claim of bad faith. This claim, however, is premised upon the defendants' conduct in "attempting to attain a position of financial leverage over [p]laintiff and coerce [p]laintiff into performing additional work not reasonably required by the project," which is inapposite to the plaintiff's ability to recover on a defective contract. The plaintiff's argument in support of his objection to the present motion relates to the defendants' bad faith in inducing the plaintiff to sign the contract without the cancellation clause, facts which are completely absent from the complaint.
It is additionally noted that estoppel requires a showing of due diligence to ascertain the truth, and that a home improvement contractor entering into a home improvement contract cannot demonstrate due diligence simply by claiming that he was induced to rely upon the validity of the contract by the opposing party. See Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 252 n. 7, 618 A.2d 506 (1992).